ATTORNEY FOR APPELLANT
: ATTORNEY FOR APPELLEE:
JOSEPH P. MAGUIRE ADAM J. MOORE
Indianapolis, Indiana Conover & Foos
IN THE COURT OF APPEALS OF INDIANA
VICTOR L. MERIDA, ) ) Appellant-Plaintiff, ) ) vs. ) No. 49A04-0004-CV-146 ) JENNIFER L. CARDINAL, ) ) Appellee-Defendant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard Huston, Judge
Cause No. 49D10-9807-CT-1031
May 30, 2001
OPINION - FOR PUBLICATION
If you find that the Plaintiff, Victor Merida, or the non-party, Kenneth Thurston,
from the evidence, had a green light for their direction of travel, they
had no duty to look to the left and to the right to
see if any approaching traffic was going to violate the law.
Record at 83.
The trial court refused this instruction over Merida's objection. Merida contends on appeal that the instruction covered one of the main issues in the case, as shown by the evidence and closing argument, and that the trial court abused its discretion in refusing the instruction.
The giving of jury instructions is a matter within the sound discretion of the trial court, and we review the trial court's refusal to give a tendered instruction only for an abuse of that discretion. See Control Techniques, Inc. v. Johnson, 737 N.E.2d 393 (Ind. Ct. App. 2000), trans. pending. Such an abuse of discretion occurs only when: 1) the instruction correctly states the law; 2) the evidence supports the instruction; and 3) the substance of the instruction is not covered by other instructions. Id. Further, even if refusal of a tendered instruction is error, we will not reverse unless the failure to give the instruction substantially and adversely affected the party's substantial rights so as to likely have affected the result. Epperly v. Johnson, 734 N.E.2d 1066 (Ind. Ct. App. 2000).
In Frito-Lay, Inc. v. Cloud, 569 N.E.2d 983 (Ind. Ct. App. 1991), we suggested to the trial court that on retrial See footnote it instruct the jury regarding the respective rights and obligations of the preferred driver and the nonpreferred driver as set out in Anderson v. Pre-Fab Transit Co., Inc. We specifically discussed Anderson as follows:
The case of Anderson v. Pre-Fab Transit Co., Inc. (1980), Ind.App., 409 N.E.2d 1157 involved an accident at a traffic signal. The defendant failed to stop at the red light and collided with the plaintiff who had a green light. We held that if the plaintiff was not on notice that the other motorist would violate the law, he had no duty to look both directions on the nonpreferred road to see if any approaching traffic was going to violate the law. In so holding, we relied on Wallace v. Doan (1973), 155 Ind.App. 316, 292 N.E.2d 820 which contains the exact holding for a stop sign case. We noted further that the preferred driver has the right to assume the non-preferred driver will obey the traffic laws and is not required to proceed overly cautiously into an intersection and to be cognizant of everything in plain view. Id. Finally, we noted that if we were to require the preferred driver to check the oncoming traffic on the non-preferred street we would probably cause more accidents than we would prevent. Id.
Frito-Lay, Inc. v. Cloud, 569 N.E.2d at 992 (emphasis supplied).
The instruction tendered by Merida was a correct statement of the law. While Cardinal is correct that a driver on a preferred street must still exercise due care at an intersection, Anderson makes clear that due care does not mandate that the driver look left and right unless he or she has notice that another driver might violate the law. See footnote Anderson v. Pre-Fab Transit Co., Inc., 409 N.E.2d 1157. Further, nothing in the tendered instruction eliminated Merida's duty of due care, as expressed in the general negligence and comparative fault instructions.
The evidence supports the tendered instruction. As noted previously, Cardinal argued to the jury that Merida and Thurston were at least partially at fault for the accident because they failed to look both ways before entering the intersection. During cross-examination, Cardinal attempted to establish that Merida failed to look left and right before entering the intersection. Moreover, Cardinal specifically told the jury that Merida and Thurston had a duty to look both ways, which they breached. Cardinal's presentation of evidence and closing argument clearly created an erroneous impression of the law and, therefore, supported the giving of the tendered instruction.
Finally, the substance of the instruction was not covered by other instructions given at trial. The jury was instructed on the general law of negligence and comparative fault. It was not, however, instructed that, contrary to Cardinal's arguments at trial, a driver lawfully using a public highway has no duty to look right and left before entering an intersection on a green light. The trial court's refusal of Merida's tendered instruction amounted to an abuse of discretion.
Having concluded that the trial court erred by not giving the instruction, we must still determine whether the error substantially prejudiced Merida in the presentation of his case. Here, Cardinal's primary argument for comparing fault was Merida's and Thurston's failures to look right and left before entering the intersection. The jury in turn found Merida and Thurston each thirty percent at fault. We conclude that the trial court's failure to properly instruct the jury likely affected the verdict. See footnote
Judgment reversed and remanded for a new trial.
BAILEY, J., and MATTINGLY-MAY, J., concur.
Essentially what they are telling you is that she failed to see a
red light. That she ran a red light and went into the
intersection when she shouldn't have. Based on those things she failed to
see. Well who else failed to see something in this case?
Two people stop northbound, who were right up by the light, who claimed
that as they entered the intersection; or before it, they didn't see a
thing. They didn't see defendant's car. . . . They failed to
see. It is called failure to keep a proper lookout. Each
and every one of us before we enter an intersection has a duty
to make sure that it is clear. You can't sit there, not
look and drive straight in because other vehicles may be coming. And
as a duty imposed on all of us, we have to look.
We have to make a determination. And what is more probably true
than not true? Is it that Mr. Baker, the witness, is able
to see through an intersection, but Mr. Merida and Mr. Thurston can't.
Give me a break. . . . They say that she failed to
see, they failed to see the obvious. The duty to look both
ways. The duty to let the intersection clear. That is the
duty that they have breached.
Record at 269-70.